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2017 DIGILAW 791 (GAU)

Nur Mohammad v. State of Assam

2017-06-15

HITESH KUMAR SARMA

body2017
JUDGMENT AND ORDER : 1. This is a jail appeal, preferred by the accused-appellant from Central Jail, Nagaon, vide his application dated 22.7.2016, against the judgment and order, dated 15.7.2015, passed in Sessions Case No. 354(N)/2011, convicting the accused appellant under Section 376 of the Indian Penal Code, and sentencing him to rigorous imprisonment for 7(seven) years and to pay a fine of Rs. 2,000/- in default, to undergo rigorous imprisonment for another two months. 2. The victim, Ms. X, is the daughter of PW-1, aged about 13 years, was raped by the appellant Md. Nur Mohammad, aged about 58 years. On commission of repeated rape, the victim got pregnant and, ultimately, gave birth to a female child. While she was pregnant for about 25/26 weeks, she informed her mother about the commission of rape by the accused/appellant and, her mother, in turn, informed her father, the PW-1. The accused is a relation of the victim and used to frequent to their house. The house of the accused is near to that of the victim. 3. On the basis of such facts, PW-1 lodged the FIR with the Mowamari Police Outpost on 22.4.2011. The FIR was forwarded to the Samuguri Police Station for registration of a case by the in-charge of the aforesaid police outpost. Accordingly, Samuguri Police Station registered a case, being No. 253 of 2011, under Section 376/493 of the Indian Penal Code, and entrusted the investigation of the case to S.I. of Police, Shri Jagat Chandra Das. On completion of the investigation, the police filed charge-sheet against the accused under Section 376 of the Indian Penal Code. 4. The accused appellant was charged for commission of an offence under Section 376 of the Indian Penal Code by the learned Sessions Judge, Nagaon in Sessions Case No. 354(N)/2011. The accused appellant pleaded innocence to the charge. 5. The prosecution, to bring home the charge against the accused appellant, examined as many as 7 witnesses, who were subjected to cross-examination by the defence. 6. It deserves mention here that, vide Petition dated 10.1.2012, the accused appellant prayed to the learned Sessions Judge to cause DNA test of himself, the victim and the child of the victim. 5. The prosecution, to bring home the charge against the accused appellant, examined as many as 7 witnesses, who were subjected to cross-examination by the defence. 6. It deserves mention here that, vide Petition dated 10.1.2012, the accused appellant prayed to the learned Sessions Judge to cause DNA test of himself, the victim and the child of the victim. However, the learned Sessions Judge, Nagaon, rejected such prayer of the accused appellant, vide order dated 22.8.2012, following which, he preferred a Criminal Revision Petition before the High Court, being Criminal Revision Petition No. 458/2012, against the aforesaid order dated 22.8.2012. The High Court disposed of the revision petition allowing DNA test to be conducted of the accused appellant, the victim and the child, stated to have been born out of the crime committed by the appellant. 7. DNA tests, in accordance with the above order of this Court, was conducted on 29.11.2012. 8. In his statement recorded under Section 313 of the Code of Criminal Procedure, on 18.3.2012 and 19.3.2015, accused appellant denied the accusation levelled against him as well as the fact that his blood sample and that of the child of the victim matched as per the report of the DNA examination. 9. During the cross-exanimation of the witnesses also, the accused appellant tried to make out a case that the victim had sexual relationship with three(3) other persons, namely Gafur, Kalia and Faizul. But, the accused appellant did not adduce any defence evidence to substantiate his such plea, which was required in view of his denial by the victim. 10. Now, the question for determination is whether the accused appellant committed rape on the victim, as alleged. 11. For determination of the above point, it would be apposite to evaluate the evidence of the prosecution witnesses. EVIDENCE 12. PW-1, Ahmed Ali, is the father of the victim-X, examined as witness by the Court on 13.12.2011, deposed that his daughter (the victim), was 14 years of age and that the occurrence took place about a year back. The accused used to visit his house for several months and had love affairs with his said daughter. According to him, the victim informed her mother that the accused is responsible for her pregnancy. The mother of the victim then informed this fact to PW-1. The accused used to visit his house for several months and had love affairs with his said daughter. According to him, the victim informed her mother that the accused is responsible for her pregnancy. The mother of the victim then informed this fact to PW-1. There held a meeting of the villagers (village mel), where the accused admitted his guilt, although, subsequently, he retracted. This witness lodged the FIR (marked as Ext.1). There was medical examination of the victim and that her statement was also recorded under Section 164 of the Code of Criminal Procedure. Twenty-seven days before the date of recording of her evidence, the victim delivered a female baby. In his cross examination, he is found to have stated that the occurrence took place about 11 months back and he came to know after about 8 months of the pregnancy of his daughter, the victim. A panchayat was held to settle the matter. Abdul Hye, Sattar and other respectable persons of the locality were present in the panchayat. PW-1 denied that due to political differences, he lodged the FIR against the accused. He further deposed in his cross-examination that the other villagers also used to visit his house. He expressed his ignorance whether the villagers suspected one Gafur, Kalia and Faijul as the persons having illicit relationship with his daughter/victim. 13. PW-2, the victim, was examined on 13.12.2011 by the Court. She is found to have stated in her evidence that the accused appellant frequently visited their house for about last one year and that the accused is her relative. She is also found to have stated that the accused had intercourse with her on several occasions and even threatened her when she refused to have sexual intercourse with him. According to her, the accused appellant had sexual intercourse with her in the banana plantation, as he used to call her there. She became pregnant as a result of such sexual intercourse. The accused refused to do anything when he was informed by the victim that she got pregnant. The accused is a married man. She also stated that there held a meeting of the villagers (village mel) in the village in respect of the occurrence, where the accused initially admitted his guilt, but later on, ran away from the meeting. In the cross-examination, she has admitted that she also used to visit the house of the accused. The accused is a married man. She also stated that there held a meeting of the villagers (village mel) in the village in respect of the occurrence, where the accused initially admitted his guilt, but later on, ran away from the meeting. In the cross-examination, she has admitted that she also used to visit the house of the accused. She is found to have denied that there is political difference between the father and the accused, admitting that her father is a Congress Party man and that the accused is a member of the AGP (Asom Gana Parishad). According to her, the accused is the only person who visited her house. She expressed her ignorance about the persons, namely, Kalia, Gafur and Faijuddin. She stated that there were lot many persons in the village meeting although she was not aware of their names. Corroborating the evidence of PW-1, the victim/PW-2 is found to have deposed that she informed her mother about the fact of commission of rape on her by the accused appellant. She was a student of Madrassa at the time of occurrence. 14. PW-3 is Makbul Hussain, who is found to have stated, in his evidence, that he knows the victim. He further deposed that there is a fishery (beel) near his house and the accused and the victim used to cut grass there for cows. There is some jungle near the said water body. Both of them used to go to the jungle, which he saw while he was also cutting grass. He also saw the victim and the accused appellant coming out of the jungle after about half-an-hour. Thereafter, again, after a week, he saw both of them in the jute cultivation although he was not aware what they were doing there. This witness has also found to have deposed that there was a meeting of the villagers (village mel) held. There the accused agreed to keep the victim as his wife, but later on, refused and ran away from the village meeting. The defence is found to have not been able to discredit such evidence of the PW-3. The father of the victim, is the paternal uncle of this witness – PW-3. He is also a member of the Congress Party. As admitted, there is a quarrel between the accused appellant and his father during the election. The defence is found to have not been able to discredit such evidence of the PW-3. The father of the victim, is the paternal uncle of this witness – PW-3. He is also a member of the Congress Party. As admitted, there is a quarrel between the accused appellant and his father during the election. He has also found to have denied in his cross-examination that he has adduced false evidence due to political differences with the accused appellant. 15. PW-4 is Islamuddin. He has stated that he knows both the accused appellant and the victim. He also deposed that while he was cutting grass, he saw the accused and the victim going towards the jungle. They were also cutting grass. There was a house in the jungle and both the accused appellant and the victim entered into the house, which he saw. After about two days, while we went to the house, he noticed a bed there and after about six months, the victim disclosed that she was pregnant from the accused appellant. There was a village mel (meeting of the villagers) where this witness was also present. This witness further deposed that in the village mel, the accused appellant admitted his guilt and agreed to marry the victim and subsequently, he fled away. The victim gave birth to a female child. In his cross-examination, he is found to have clarified that he had seen the accused appellant and the victim going towards the jungle about 6/7 months back and he came to know that the pregnancy of the victim about four months back. Where were many persons present in the meeting of the villagers, which included Abdul Hye, Councillor of the village, Rahat Ali, Abu Bakkar and Abbas. The meeting of the villagers, was held in the house of the elder brother of the accused appellant, where village the headman was not present. He is found to have admitted that the persons present in the meeting were members of the Congress Party. In the said “village mel” the victim disclosed that the accused appellant had taken her to the jungle/beel (natural water body). 16. PW-5 is Dr. Madhumita Bora. He is found to have stated, in her evidence, on 28.3.2011, that while posted as Senior Medical and Health Officer in B.P. Civil Hospital, Nagaon, she examined the victim, on being identified by one woman constable. 16. PW-5 is Dr. Madhumita Bora. He is found to have stated, in her evidence, on 28.3.2011, that while posted as Senior Medical and Health Officer in B.P. Civil Hospital, Nagaon, she examined the victim, on being identified by one woman constable. She found the age of the victim to be 15/16 years on the date of examination, on the basis of radiological examination. She also not find any recent sexual intercourse with the victim at the time of examination and that the victim was 25/26 weeks pregnant on the date of the examination. She has also exhibited the medical examination report, vide Ext. 2. During her cross-examination, she asserted that the age of the victim has been recorded in the medical examination report vide Ext.2 on the basis of radiological examination. 17. PW-6 is Jagat Chandra Das, the investigating police officer, conducted the routine investigation of the case. During investigation, he sent the victim for medical examination and, thereafter, produced her before the Court and got her statement recorded under Section 164 of the Code of Criminal Procedure. He submitted the charge-sheet against the appellant under Section 376 of the Indian Penal Code. In his cross-examination, the investigating police officer is found to have stated that he recorded the statement of the witnesses, but he did not examine any of those witnesses, who were present in the meeting of the villagers, although he was reported about the fact that there took place a meeting in respect of the matter, under investigation. According to him, the witnesses, examined during investigation, did not tell him about the meeting. He is also found to have stated in his cross-examination that the accused denied the paternity of the child and no DNA test was done for ascertaining the paternity of the child. The parents of the victim girl did not produce any certificate in respect of age of the victim. According to him, none of the witnesses told him that the accused appellant was a member of AGP Party and the father of the victim i.e. PW-1 was a member of Congress Party. 18. PW-7 is Dr. Manalisha Chudhury, a Junior Scientific Officer at DNA Typing Unit Directorate of Forensic Science, Assam, Kahilipara, Guwahati. According to him, none of the witnesses told him that the accused appellant was a member of AGP Party and the father of the victim i.e. PW-1 was a member of Congress Party. 18. PW-7 is Dr. Manalisha Chudhury, a Junior Scientific Officer at DNA Typing Unit Directorate of Forensic Science, Assam, Kahilipara, Guwahati. She is found to have stated in her evidence as follows:- “On 29-11-12, I was working as Scientific Officer at DN Typing Unit Directorate of Forensic Science, I received 3 exhibits in Thermos Flask containing ice which were sealed with the impression seal in connection with Samaguri P.S. Case No. 253/2011 U/S 376/493 of the IPC vide memo No. IV/167/12/18400 dated 28.11.12. Details of Examination: 1. One sealed EDTA vial contains 2ml (approx) liquid blood of Mustt. Mashuda Khatoon collected by doctor of B.P. Civil Hospital, Nagaon with blood donar authentication card which marked as Ext. No. DNA 624/12. 2. One sealed EDTA vial contains 2ml (approx) liquid blood of Mofida Khatoon (Baby) collected by doctor of B.P. Civil Hospital, Nagaon with blood donar authentication card which marked as Ext. No. DNA 625/12. 3. One sealed EDTA vial contains 2ml (approx) liquid blood of Md. Nur Mohammad collected by doctor of B.P Civil Hospital, Nagaon with blood donar authentication card which marked as Ext. No. DNA 626/12. Result of the Examination DNA from the source of the above exhibits were isolated by organic extraction method and subjected to multiples PCR reaction of sixteen STR loci Alleles & Amelogenin using Amp FLSTR Indentifier Kit. The amplified produces along with controls were run on Automated DNA Sequencer and analysis was carried out using Genemapper ID v3.2 software with respect to standard ladder. The resultant allele distribution for the studied loci in the different exhibits is shown in table. The amplified produces along with controls were run on Automated DNA Sequencer and analysis was carried out using Genemapper ID v3.2 software with respect to standard ladder. The resultant allele distribution for the studied loci in the different exhibits is shown in table. Marker Material alleles DNA 624/14 Child alleles DNA 625/12 Paternal alleles DNA 626/12 D8S1179 11 15 11 15 15 15 D21S11 32 32 29.2 32 27.2 29.2 D7S820 10 10 11 12 12 12 CSF1PO 10 11 10 13 10 13 D3S1358 16 16 15 16 15 16 TH01 8 9 8 9 7 8 D13S317 12 12 11 12 11 12 D16S539 11 15 10 12 11 12 D2S1338 23 25 23 25 19 23 D19S433 12.2 14.2 12.2 14 12 14 VWA 15 16 15.2 18 14 18 TPOX 8 10 8 12 8 12 D18S51 13.2 14.2 12 13.2 12 15 D5S818 11 13 10 11 10 12 FGA 24 24 23 24 23 25 From the above result it is observed that one of the material allele of the amplified loci of Ext. No. DNA 625/12 (Baby) matches with one of the respective allele in the DNA profile of Ext. No. DNA 624/12 (Mother). The non-material allele of Ext. No. DNA 625/12 (Baby) is matching with the DNA profile of Ext. No. DNA 626/12 (father). Ext. 4 is the report. Ext.4(1) is the signature of Director of Forensic Science Assam which is known to me. Ext. 5 is the DNA report. Ext. 5(1) is my signature. Cross-Examination (XXX): To draw the blood sample one medical practician (doctor) is required for DNA report. In my report I have mentioned only the doctor of Nagaon Civil Hospital as collected the blood sample but I have not mentioned the name of the doctor who draw blood sample. In the blood sample tube there must be mentioned the date, time and subject along with the location and the anme of collectors and cited over the case number. I have not mentioned any report as exhibits sample were collected by whom, when and from which place and the collector’s name and also the case number. There is not necessary to transport the blood sample in cool and dry condition. It is not a fact that in transportation of blood sample the samples must be transported in cool and dry condition. I do not know what is terraform cylinder. There is not necessary to transport the blood sample in cool and dry condition. It is not a fact that in transportation of blood sample the samples must be transported in cool and dry condition. I do not know what is terraform cylinder. In course of examination of the sample I have used standardized tubes and other plastic wires. I have used the emdrof tubes. I have marked those tube according to my exhibits numbers. I have not sent the tube which I used at the time of examination to the court alongwith my report. I have not mentioned in my report to the effect that the sample were kept in cool and dry condition before examination of the same. The test was completely computerized. In computerization of the test some assistant were involved at the time of examination. It is not a fat that the sample were not properly stored and marked. There is no possibility of ambiguity regarding the test of computerization. It is not a fact since the samples were collected in not stored in a cool and dry condition and we are not properly labeled the same. Hence there is a probability of mislabeled.” 19. It appears from the evidence on record that accused and the victim had sexual relationship for several months prior to lodging of the FIR. It also appears from her evidence, as PW-2, that she was a student of a Madrassa. Her father, examined as PW-1, deposed on 13.12.2011, that the age of his daughter/victim is 14 years. The radiological examination of the victim, as found from the medical examination report as well as the evidence of PW-5, show that the victim was about 15/16 years of age. This medical examination was done on 10.1.2012. As the victim was about 25/26 weeks pregnant, on the date of examination, on 10.1.2012, so she might be pregnant for about six months or slightly more than that on that day. That being so, taking the age of the victim, as stated by her father/PW-1, in his evidence, and that of the doctor, examined as PW-5, it would appear that, in any case, she was somewhere around 14/15 years of age. In any case, she was below 18 years of age. This position, as regards her age, is not found to have been disputed by the defence during the trial. In any case, she was below 18 years of age. This position, as regards her age, is not found to have been disputed by the defence during the trial. There is also no evidence to suggest otherwise. On the other hand, the continuous sexual intercourse with the victim for several months without being objected to by her, has no relevance in the instant case, in view of the fact that consent of a minor for sexual intercourse is immaterial in the eye of law. There is a village mel (meeting of the villagers) that took place in connection with the commission of rape on the victim, causing her pregnant, is not disputed. Rather, it has come out from the evidence of PWs. 1, 2, 3 and 4 that in the meeting of the villagers (village mel), initially the accused appellant admitted his guilt only to be retracted later on. It appears from the evidence on record that regarding the meeting of the villagers, the investigating police officer did not investigate and did not even bother to record the evidence of the persons present in the meeting of the villagers in-spite of the fact that in the FIR itself, it was mentioned that there took place a meeting of the villagers. Such lapse on the part of the investigating agency is not very relevant in the instant case since in the evidence of the victim, who is a minor girl of about 14/15 years of age, is before this Court, and unless there is anything glaring to disbelieve her evidence, the Court can rely on the only evidence of the victim. There is also evidence led by the victim, examined as PW-2, that while she refused to have sex with the accused, she was threatened and this fact remained intact as not subjected to challenge by the defence. 20. As has already been said, the question of consent is irrelevant, when victim is found to be a minor. In this connection, we may rely upon the decision of the Hon’ble Supreme Court in Parhlad and Another vs. State of Haryana, (2015) 8 SCC 688 . In paragraph-11 of the said decision, it is held that:- “11. The next facet relates to the facet of consent. In this connection, we may rely upon the decision of the Hon’ble Supreme Court in Parhlad and Another vs. State of Haryana, (2015) 8 SCC 688 . In paragraph-11 of the said decision, it is held that:- “11. The next facet relates to the facet of consent. It needs no special emphasis to state that once it is held that the prosecutrix is below 16 years of age consent is absolutely irrelevant and totally meaningless.......” 21. On the other hand, it is found from the evidence on record that the FIR was lodged when the victim was 25/26 weeks pregnant. The defence tried to raise the issue of delay in lodging the FIR to create a doubt about veracity of the evidence of the victim/PW-2 and her father, the PW-1. This has come out from the evidence of PW-2/victim that while the accused appellant was informed about her pregnancy, he refused to do anything. It has further come out from her evidence that she wanted to get married with the accused appellant and, in the village meeting also, he initially agreed to keep her as his wife. The delay in lodging of the FIR may be for very many reasons. She is a minor of about 14 years of age and, naturally, she is not aware of the nitty gritty of law. That apart, the FIR was lodged only after she divulged the fact of commission of rape on her person by the accused appellant while she was at an advanced stage of pregnancy, and, thereafter, only the father of the victim lodged the FIR. 22. When there is nothing to disbelieve the evidence of the victim/PW-2 that the accused had sexual intercourse with her, which amounts to commission of rape, as she was a minor at the relevant point of time, and when such evidence is believed by the Court and when there is no compelling reasons to disbelieve her evidence, this Court is unable to persuade itself, to accept that the delay in lodging the FIR, in any way, crumble the prosecution case. The Hon’ble Supreme Court in State of Himachal Pradesh vs. Sanjay Kumar Alias Sunny, (2017) 2 SCC 51 held that:- “31............By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance (See: Bhupinder Sharma vs. State of H.P.). Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.” 23. Apart from this, what is most important in this case is that the accused appellant denied the paternity of the child of the victim. We have already believed that the accused had committed rape on the person of the victim resulting in her carrying a child in her womb. But, the accused appellant denied this fact is apparent from the application he made before the learned Sessions Judge, praying for DNA test, which was, however, rejected by the learned Sessions Judge. We have already believed that the accused had committed rape on the person of the victim resulting in her carrying a child in her womb. But, the accused appellant denied this fact is apparent from the application he made before the learned Sessions Judge, praying for DNA test, which was, however, rejected by the learned Sessions Judge. Thereafter, he filed a criminal revision petition before the High Court, being No. 458 of 2012, against the order of rejection by the learned Sessions Judge, and the High Court allowed the revision petition by permitting DNA test, as prayed for by the accused appellant, the victim, and the child. 24. In the order dated 1.10.2012, passed in the revision petition, this Court observed as follows: “True, the present case is not relating to the ascertaining the parentage of the child. Nevertheless, if after conducting the DNA test, it is established that the DNA profile of the accused and the said child can be connected, that would conclusively prove the fact of rape. On the other hand, if their profile do not match, the accused petitioner can raise certain grounds in his defence on the charge of rape.” 25. It appears from the evidence of PW-7, a Junior Scientific Officer at DNA Typing Unit Directorate of Forensic Science, Assam, Kahilipar, Guwahati, that –one of the maternal allele of the amplified loci of Ext. No. 625/12 (Baby) matches with one of the respectable allele in the DNA profile of Ext. No. DNA 624/12 (Mother). The non-maternal allele of Ext. DNA No. 624/12 (Baby) is matching with the DNA profile of Ext. No. DNA 626/12 (father). 26. As the DNA test, in the instant case, was performed on the demand of the accused appellant and as the DNA profile of the accused appellant and the female child, given birth by the victim, and also of the victim are found to have matched, as per the un-assailed evidence of PW-7, it has reinforced the fact of rape on the victim by the accused appellant. 27. Therefore, this Court has no hesitation to hold that the accused appellant committed rape on the victim/PW-2 is proved beyond all reasonable doubt. 28. Therefore, the conviction of the accused appellant, recorded by the learned Trial Court, under Section 376 of the Indian Penal Code, and the sentence imposed upon him, as indicated above, calls for no interference. 29. 27. Therefore, this Court has no hesitation to hold that the accused appellant committed rape on the victim/PW-2 is proved beyond all reasonable doubt. 28. Therefore, the conviction of the accused appellant, recorded by the learned Trial Court, under Section 376 of the Indian Penal Code, and the sentence imposed upon him, as indicated above, calls for no interference. 29. Accordingly, the judgment of the learned Trial Court is up-held. 30. Send a copy of this judgment to the Superintendent of Central Jail, Nagaon for forwarding the same to the accused/appellant. 31. Send down the LCR with a copy of this judgment.